80 S.E. 225 | N.C. | 1913
This is an action for personal injuries. The court suggested that counsel should arrange to have a stenographer to take notes on the trial. They failed to do so, and the court finds as a fact that "counsel were notified at the beginning of the trial that they would be given ample time to record all exceptions, and they were given such ample time, and in this case on appeal the appellant is allowed every exception claimed by it in its statement of the case on appeal."
The defendant excepts because the judge did not take notes of the evidence and did not himself make a record of the exceptions taken by the defendant on the trial. The statute does not require that the judge shall take down the evidence. It is true that Revisal, 554, (203) sub-sec. (2), does provide: "If an exception be taken on the trial, it must be reduced to writing at the time, with so much of the evidence or subject-matter as may be material to the exception taken; the same shall be entered on the judge's minutes and be filed with the clerk as a part of the case upon appeal." This provision does not require that the judge shall reduce the exceptions to writing himself, but merely that they shall be reduced to writing and entered on his minutes. It is competent for the judge to require the stenographer, or some one else for him, to take down the exceptions and evidence pertinent thereto. It was, therefore, competent for him to authorize the defendant's counsel themselves to take down their own exceptions. He finds as a fact that he promised them ample time to do so, and that they had it. The defendant certainly cannot except to this privilege. The other side might possibly feel aggrieved. Even if it was error, the defendant could not complain, for it could not be and was not *163
prejudicial error to that side. It is found that the "appellant is allowed every exception claimed by it in its statement of case on appeal." It is not alleged that there were any other exceptions of which the appellant was deprived from lack of time, and the judge finds the contrary to be the fact. His statement is necessarily conclusive of what occurred at the trial. Cameron v. Power Co.,
Exception 2 is that the plaintiff was allowed to testify what was the "regular price" for the work which he was doing, stating that he was promised the regular price. This was competent, and if incorrect as to amount, the defendant could have shown it. Exception 3 is to the admission of a conversation between the plaintiff and the defendant's foreman and vice-principal prior to the injury. This tended to show that Thomas, the log-loader, was an inexperienced man. The negligence complained of in this case is the act of the log-loader, who was running the engine, in suddenly and unexpectedly and without warning jerking a log into which the plaintiff had hooked the tongs, without giving the plaintiff an opportunity to get out of the way. Although it was not necessary to put in this testimony, at most it was immaterial.
The motion for a nonsuit was properly refused. The allegation in the amended complaint is: "The defendant, Madison County Railroad Company, without any signal, suddenly, and without (204) any notice to the plaintiff, moved the log to which the plaintiff had attached the tong hooks, and carelessly and negligently threw or caused said log to be thrown, upon the plaintiff, and seriously and permanently injuring him." The testimony of the plaintiff upon this point was: "After I had hooked the tongs to the log, Marion Thomas, the log-loader, without any signal or warning, suddenly and unexpectedly jerked the log with the crane and log-loader and threw the same over on me and injured me before I had time to get out of the way."
Exception 5 was for refusal to charge that if the jury believed the evidence, to find the issue of negligence "No."
Exception 6 is for the refusal of the court to give the following instruction: "If the jury shall find from the evidence that at the time Thomas started to pull on the log he did not know, and had no reasonable ground to believe, that the log was caught or that it would follow other than the usual direction, the act of Thomas in pulling on the log would not be negligent, and the jury would answer the first issue `No.'"
This exception and the next are abandoned because not set out in the defendant's brief. Rule 34 provides: "Exceptions in the record not set out in appellant's brief will be taken as abandoned by him." But if it had been insisted on in the brief, it could not be sustained, for though Thomas did not know, or had no reason to believe, that the *164 log was caught or would follow other than the usual direction, it was, notwithstanding, negligence, if, as charged in the complaint and shown in the evidence, he jerked the log, without warning and unexpectedly, without giving the plaintiff an opportunity to gain a place of safety, as he should have done, whereby he was injured.
It was held in Hemphill v. Lumber Co.,
No error.
